P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR 200103841, EEOC Case No. 26GA200320

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 15, 2004
kleindi . rsd : 110 : 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


This case concerns the layoff of Diane Kleinsteiber, a Process Technician at Eaton Corporation/Cutler Hammer's plant in Watertown, in October, 2001. The issue presented is whether she was selected for layoff in retaliation for her having filed an earlier complaint of discrimination against the employer. (1)   The complainant alleged that the respondent manipulated the process by which employees were selected for layoff in order to be able to lay her off in retaliation for a previous discrimination complaint. The respondent asserted, that the complainant was selected for layoff based on information given by the operations manager of the plant in which she worked, to the plant manager and human resources manager who were making the decisions on who to lay off, that he would rate her lowest among the Process Technicians in the set of capabilities the employer had decided would be the factors used to select for layoff.

Based on its review of the record, the commission is satisfied that the Findings of Fact made by the administrative law judge are a complete and accurate depiction of the material facts concerning the process by which the challenged decision was made. The commission finds no persuasive reason to believe, that the layoffs at respondent's plant in October 2000-October 2001 were motivated by anything other than the significant decline in business that was taking place for the employer. Furthermore, the commission finds no persuasive reason to believe, that the process by which the complainant was selected for layoff was manipulated because of any discriminatory motive or that it reflected anything other than the respondent's good-faith attempt to make decisions about employee retention based on performance.

Respondent's Human Resources Supervisor Gail Oestereich and Plant Manager Feroze Motafram, along with Monica Young, developed the standards and procedures that were applied to choose who would be laid off in October 2001 and they actually implemented the reduction. The commission sees no reason to believe that the decision on the standards and procedures to be applied to choose who would be laid off in the October 2001 layoff were designed in advance by Oestereich, Motafram and Young to have the result of causing the layoff of the complainant. That would have been difficult if not impossible to do, since the process chosen to make the decisions on who to lay off involved using ratings which were to be obtained from others (in the case of the Process Technicians, that was Noel Winke).

The evidence establishes that, as was contemplated by the procedures they had decided would be followed to choose who would be laid off in October 2001, Oestereich and Motafram called in Noel Winke and had him rate the Process Technicians in the categories and using the scale they had developed.

The complainant argues that the administrative law judge's decision improperly rested on hearsay, because there was no testimony from Winke (who is no longer employed by respondent) about what he told Oestereich and Motafram as to how he rated the employee, but only testimony from the Oestereich and Motafram. The commission does not agree that it was improper to consider this evidence. The evidence was not hearsay when considered to determine why the complainant was laid off, because its significance was not as proof of the truth of what Winke stated about the complainant's abilities, but instead simply as proof that he did make those statements to Oestereich and Motafram. That evidence is relevant because Oestereich and Motafram indicated that they believed and relied on Winke's statements, and that it was on the basis of their beliefs in that regard, rather than on any animus against the complainant because of her having filed a complaint, that they made their decision.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Wis. Stat. § 908.01(3). The element of this definition that has to do with what the evidence is taken as proof of, is of particular importance to issues that arise in employment discrimination cases. In such cases, the important question is the motivation of the person making the challenged decision -- specifically, whether they were motivated by an impermissible factor such as race, sex, age, or (as here) the fact that the affected employee had previously filed a discrimination complaint. Evidence about something a decisionmaker was told by another person can be important in understanding what the decisionmaker's motive was, and it is appropriate for it to be considered for that purpose. Thus, the commission has frequently found it acceptable to consider evidence, consisting of an employer's testimony about statements made to them by a third-party declarant, not to prove the truth of the matter asserted by the declarant but as evidence of what the employer believed and thus what motivated them in making a challenged decision. Voelz v. Kimberly-Clark (LIRC, June 6, 1997) (testimony regarding statements by declarants to employer not hearsay when offered only to show how it influenced the employer's beliefs as to what had happened, not to prove the truth of the matter asserted); Roncaglione v. Peterson Builders Inc. (LIRC, Aug. 11, 1993; aff'd, Dane Co. Cir. Ct., May 6, 1994) (testimony not hearsay because not offered to prove the truth of what declarants said, but merely to prove that they said these things to the employer, thus tending to establish what his motives were); Jones v. Milwaukee County (LIRC, April 6, 1995) (statements made by third parties not inadmissible hearsay when not offered to prove the truth of their contents, but to prove what the person who heard them believed and relied upon in making an employment decision); Vandeveer v. Brown County (LIRC, June 28, 1993) (third party statements, whether or not true, not inadmissible hearsay when offered to demonstrate that respondent relied upon the statements in making challenged decision).

An illustrative case is Potts v. Magna Publications Inc. (LIRC, Feb. 27, 2001). That was a retaliation case, in which the employer asserted that the two persons who actually made the challenged decision to terminate the complainant were motivated by negative things other people told them about the complainant. Specifically, these other people had told the decisionmakers about incidents in which the complainant was having disputes with other employees and was being disruptive. While the two decisionmakers testified, the people who had conveyed these negative reports about the complainant to them did not testify. The administrative law judge wrote:

[T]here were substantial reports that Mr. Potts was having ongoing disputes with other employees, and credible evidence that these reports caused concern for Mr. Perkins and Ms. Long, the two individuals who decided Mr. Potts' fate with the company. Although this evidence was all second-hand, it was not offered to prove the truth of the matter, that Mr. Potts was in fact disruptive, but to rebut the contention that the company's articulated reason for terminating Mr. Potts was a pretext. Nothing prohibited Mr. Perkins and Ms. Long from basing their termination decision on reports of acts that occurred outside their presence. Their testimony that they received and believed the reports of Ms. White, Ms. Hartelt, Ms. Santovec, Ms. Sigmond, and others was credible.

Referring to this element of the administrative law judge's decision, the complainant argued to the commission, that the respondent failed to meet its burden of articulating a legitimate, nonretaliatory reason for the termination of his employment because the reasons articulated for his termination were mostly based on hearsay.

The commission rejected this argument and agreed with the administrative law judge's analysis. It explained:

The testimony offered by Mr. Perkins and Ms. Long did not constitute hearsay. Where a declarant's statement is offered for the fact that it was said, rather than for the truth of its content, it is not hearsay. State v. Wilson, 160 Wis. 2d 774, 779, 467 N.W.2d 130 (Ct. App. 1991). See, also, Wis. Stat., § 908.01(3). Ultimately, the question is whether the employer was in fact actually motivated by a good-faith belief in the complaints about the complainant, or instead by prohibited bias. McGee v. Society's Assets et al. (LIRC, Feb. 13, 2001), citing, Atkins v. Pepsi Cola Gen. Bottlers (LIRC, Dec. 18, 1996) and Salinas v. Crivello Properties (LIRC, June 5, 1992).

In her Brief, the complainant argued that the respondent offered the evidence as to Winke's low rating for the truth of the matter asserted, i.e., to prove that complainant was indeed the poorest performer in her workgroup. However, this argument by the complainant is both inaccurate, and ultimately irrelevant. It is inaccurate, because there is no basis for the contention that the evidence was offered for the purpose of proving the truth of the matter. The question of the purpose for which the evidence was offered actually never came up, because complainant's attorney never raised any objection to the testimony, on hearsay or any other grounds, which might have provoked a discussion about its intended purpose and its relevance and admissibility for that purpose. The argument is also ultimately irrelevant, because what is important is whether the administrative law judge or the commission uses the evidence for a purpose for which it is admissible and appropriate. The commission does not need to look to the evidence as to what Winke told Oestereich and Motafram as proof that the complainant was in fact the lowest performer among the Process Technicians, and it does not do so. Rather, the commission takes it simply as evidence bearing on what Oestereich and Motafram believed about the complainant's performance, and as what motivated them in their decision to select her for layoff. As did the administrative law judge, the commission finds credible the testimony of Oestereich and Motafram that Winke gave them the rating of the complainant which they described, and it finds credible their testimony that they believed and relied on what Winke told them and made their decision on that basis.

The commission would observe, that it appears that the complainant's belief that she was illegally retaliated against rested on a number of misconceptions. One was the idea she expressed at hearing that, because she had filed an earlier complaint, she had somehow been automatically protected against any adverse action taken for any reason. Of course, this is not correct; she was protected only against adverse action taken because she had filed the earlier complaint. Another misconception was her belief that she was subject to a set of reduction in force guidelines that called for seniority to govern the selection of employees for layoff (after initial layoffs of employees with unsatisfactory performance ratings and those with disciplinary warnings on their records). The complainant was referring here to the Reduction In Force policy found in Ex. 10. However, as explained by the respondent's Human Resources Department witness Oestereich, and as confirmed on the face of the document, the specific guidelines the complainant was referring to were applicable only to production employees. As a Process Technician, the complainant was considered a support employee. The Reduction In Force policy specifically distinguished between production and support employees, and it did not provide the seniority-based process the complainant was referring to for support employee.

While Oestereich, Motafram, and Young appear to have known of the complainant's earlier discrimination complaint, the commission finds no persuasive evidence that they held any retaliatory animus against her because of it. In contrast to this lack of evidence of a discriminatory motivation, the need for the layoffs that occurred in 2001 was clear, and there is no persuasive reason to believe that the decision on the process to be followed in selecting employees to be laid off -- that is, soliciting comparative ratings of employees from managers in their areas -- was designed with the ulterior motive of ensuring that one particular employee (the complainant) would be selected for layoff. The commission is persuaded by the record that the complainant was laid off simply because Noel Winke, in good faith and based on what he knew of her abilities from information that had been relayed to him by his subordinates, rated her lowest when he was called in and asked to rate the process technicians. There was no specific evidence introduced that Winke was aware that the complainant had filed an earlier complaint with the ERD. Even if he was, there is no direct or indirect evidence that he bore the complainant any ill will as a result of it, and the evidence introduced about the complainant's performance does not call into question the idea that Winke could well have believed that she was the least able of the Process Technicians. Viewed in its entirety, the record here simply does not provide a reasonable ground for belief that discrimination probably occurred.

For the foregoing reasons, the commission agrees with the findings and conclusions of the administrative law judge that there is no probable cause to believe that the respondent discriminated against the complainant as alleged in her complaint.

Vicki Zick, Attorney for Complainant
Autumn M. Kruse, Attorney for Respondent

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(1)( Back ) The complaint also alleged sex and age discrimination. However, the complainant's Petition for Review made no mention whatsoever of such issues. It expressly referred only to the claim of retaliation, and it repeatedly referred to and characterized the issue for decision as being whether the reason for the challenged layoff decision was "retaliatory". This exclusive focus on retaliation as an issue continued in Complainant's Brief in Chief, in which there was repeated express reference to retaliation as being the issue, but no mention whatsoever of any issue of age or sex discrimination. Significantly, Respondent's Brief noted this lack of any reference by Complainant to her age and sex discrimination claims, Respondent's Brief, p. 1, but in her subsequent Reply Brief, Complainant provided no explanation for not having mentioned those issues -- indeed, she did not even acknowledge the matter. 

Although the filing of a timely petition for review by any party gives the commission the authority to review any and all aspects of a decision below, it has long adhered to the policy that it will generally not exercise its review authority to address issues when they are neither expressly nor implicitly raised by a petition for review. Crosby v. Intertractor America Corp. (LIRC, May 21, 1993). In this case, no issue of age or sex discrimination was raised in any fashion in the petition or the arguments made in support of the petition. The lack of reference to these issues is so conspicuous that it can be taken as an implicit abandonment of those issues.


uploaded 2004/03/16